A toothless law to combat child marriage
DESPITE the existence of legal provisions against child marriage, it is prevalent in many parts of Bangladesh which compromises the advancement of larger portions of adolescents. By virtue of religious dichotomy following by orthodox interpretation of religious texts, early marriage still subsists in the modern society. While the Child Marriage Restraint Act 1929 fails to combat child marriage in Bangladesh, recently the government of Bangladesh has drafted a new law titled as Child Marriage Restraint Act 2014. But this draft Act suffers from efficiency crisis which needs to be revisited with sensible drafting.
If we read together child and marriage it would provide a clear sense that these two words cannot go together. The reason is very apparent that child marriages disregard and destroy the values and ethos of the institution of marriage. In 1929 there might have good reasons to name the Act as Child Marriage 'Restraint' Act, but in 2014 the term 'restraint' is not tenable because the term not only make the issue less vibrant but also provide us the sense of colonial legacy to address the issue. Prohibition or prevention of child marriage is imperative because it not only threatens the constitutional norms professing gender equality but also ignore the provisions of International Human Rights instruments dealing with equal rights and dignity. Interestingly, we made a law regarding prevention of domestic violence, but in terms of child marriage we are using the word 'restraint' though it is apparent that child marriage is one of the important sources of domestic violence.
Age dilemma: Under the draft Act minor means a person who, if a male, is under twenty one years of age, and if a female, is under eighteen years of age which clearly contradicts with the Majority Act 1875. According to the Majority Act, 18 years is the age of majority in general. This anomaly will certainly create disruption in terms of the implementation of the Act.
Apprehension of misuse of power by the Nikah registrar: As the draft Act is applicable irrespective of any communities, so term Nikah is not appropriate since it bears special connotation with Muslim personal law. Moreover, section 8 of the draft Act provides a wide discretionary power to the Nikah registrar in terms of cancellation of the registration of marriage. Under this section the nikah registrar has to reach in a belief followed by reasonable logic that there was no child marriage, only then he can cancel the registration of marriage. The term 'belief' and 'reasonable logic involve' many vague factors and the practical evidence suggests that there might have possibility of malpractice by the nikah registrar in the absence of concrete grounds for cancellation of child marriage.
Duration of taking cognizance of the offence: Under section 12 of the draft Act no court shall take cognizance of an offence after one year of the commission of an offence. It is ashamed to mention that, the imposition of limitation period in terms of an offence which indicates criminal law is nothing but reflect the insensible drafting of a law.
Unspecified ADR procedure: Section 19 of the draft Act states that, the representatives from union parishad or municipality are assigned to follow Alternative Dispute Resolution to settle the disputes regarding child marriage. But this Act is silent about which law or directives would be followed in terms of applying ADR method. In this situation the local representatives can easily engaged in malpractice in the absence of proper guidelines to follow.
Cancellation of marriage: The draft Act contains provision for cancellation/ dissolution of marriage on certain grounds including child marriage occasioned by forgery, coercion or deceptive means or against will through trafficking, forceful rape etc. The incorporation of the term 'forceful rape rather than rape only' not only undermine the human rights values but also shows tremendous reluctance from the drafters in terms of signifying the grievance of rape victims.
Absence of interim order: Further there is no provision for interim order in this regard till the decision of the court which we see in the Prohibition of Child Marriage Act in India. The necessity of interim order for maintenance or other services is significantly essential in the context of Bangladesh because it is an evident truth that our court system takes an indefinite longer period to settle disputes.
The Draft Act also does not contain any provision regarding the status of marriage when the parties of the marriage would attain majority. In India the prohibition of child marriage Act 2006 contains provision which make child marriage voidable at the option of the contracting party who was a child at the time of the marriage. This provision to large extent signifies the practical aspects of engaging in child marriage. But our Act fails to address the practical aspect which is instrumental to make an Act people friendly.
The word child and minor should be distinctively defined as it found in Indian Prohibition of child marriage Act : 'child' means a person who, if a male, has not completed twenty-one years and 'minor' means a person who, under the provisions of the Majority Act, 1875 is to be deemed not to have attained his majority.
Marriage registrar should follow certain guidelines in terms of cancellation of marriage and it should not left upon the discretion of his 'belief'.
To reduce extra burden of cases, the ADR procedure prescribed under Village Court Act 2006 applicable in the local area and The Conciliation of Disputes (Municipal) Board Act, 2004 applicable in the municipal area can be taken into account for the smooth functioning of alternative procedures of dispute resolution.
As child marriage is more concerned with domestic affairs so the family court can be given jurisdiction for better adjudication of cases relating to child marriage.
Provisions should be made regarding shelter home for the victims of child marriage and they should be attended with proper care and attention considering the best interest of the child.
Special measures and developmental schemes need to be equipped to enrich the capability of people particularly the poor people and they should be made aware about the disastrous impact of child marriage.
Laws in Bangladesh have been traditionally made in line with the male dominion disregarding the voice of women. The day to day experiences of girls being the victims of child marriage often remain ignored and excluded in the landscape of law. In this backdrop a people friendly law along with sophisticated understanding of practical factors can stimulate the fighting of prevention of child marriage.
The writer is Lecturer of Law, Eastern University.